Legal Beagle by Graeme Edgeler

38

Kim Dotcom: We need an Inquiry!

After details of the unlawful spying by the Government Communications Security Bureau on Kim Dotcom became public, I called for a police investigation. Charges may not be appropriate, but I think there has been offending, and there is clearly enough to investigate. In interviews on both TV1's Q+A, and TV3's The Nation, former Prime Minister Sir Geoffrey Palmer raised the possibility of both civil and criminal consequences following from the unlawful spying.

Sir Geoffrey spoke against the holding of a broader public inquiry - essentially arguing that seeking to get our spy agencies operating effectively by holding a transparent inquiry will be rather counterproductive.

On Monday afternoon, it was announced that the Cabinet Secretary would be seconded to the GCSB as an Associate Director. Taking a three-month leave of absence from her current post, she "will be responsible to the Director of the GCSB for the implementation of an immediate capability, governance and performance review. This work will provide assurance to the GCSB Director that the Bureau's activities are undertaken within its powers, and that adequate assurance and safeguards are in place."

This isn't what the Labour Party has been calling for. They have already referred to the report of the Inspector-General of Intelligence and Security as a "white wash", not because of what it dealt with, but because it didn't look into the oversight (not) provided by the Prime Minister.

But the lack of oversight is a political matter, with a political solution. We Already know the Prime Minister didn't provide oversight over this action because he has repeatedly said he didn't. The only question that really needs to be answered is whether David Shearer would do it differently, and whether a Prime Minister taking a more interventionist role in controlling our spy agencies is something to be welcomed, or feared.

While I called for a police investigation, I've been reluctant to support calls for a broader inquiry. The calls undoubtedly have a political flavour, but that's not my major concern. Mostly I question what we'd actually find out. I'd be interested in a few of the real details: exactly what was the question asked of the police about Dotcom's residency status, and what was the reply? But these are pretty minor things. Usually, we need an Inquiry to work out how something happened, or whether someone has acted improperly or unlawful. Unflattering conclusions on these matters have already been admitted by the Government and agreed by the Inspector-General.

We are never going to be told the operational details of the Dotcom fiasco - even if this made it to Court as a criminal prosecution, the protection of security is one basis on which Courts may be closed to the public, and even the media can be excluded.

Moreover, these matters are not why people have been calling for inquiries, which have largely focused around the lack of democratic oversight by Prime Minister John Key. But given that John Key has publicly stated he didn't know about the action, and wasn't told by officials what was going on, the likelihood of an investigation adding to our understanding of these questions is remote.

Opposition politicians are already saying Key was "asleep at the wheel", what does an inquiry into the oversight in this case add to these arguments, beyond telling us again, what we have already been told? 

Part of the rationale behind the particular scrutiny John Key is facing over this matter is that he is the only democratic check. Other agencies - like the Police - have to get warrants from judges before conducting surveillance, and can later have the evidence obtained challenged before another judge. As a general rule, other agencies will be more likely to respond to OIA requests (and refusals they make are more likely to be overturned by the Ombudsman), and others have obligations under the Criminal Disclosure Act. Parliamentary procedures can also look more closely at police operations, which are also subject to the Independent Police Conduct Authority.

A broader inquiry into the Dotcom case isn't going to address any of these matters. The concerns that still need to be addressed aren't limited to Dotcom, or even other GCSB inquiries. What matters now is how the actions of the GCSB and other Spy Agencies are checked in the future.

So - other than that police inquiry - what I'd really like to see is someone look into the machinery of our security agencies. Do the laws we have reflect a proper regard for the competing values our society recognises?

Given that we have limited police powers to intercept communications to a range of serious offences, do we want them using the GCSB as an end-run around the protections we have put in place? They can't use the information gathered as direct evidence in Court - is this enough of a protection from abuse?

Alternatively, if this is about providing protection for Police Officers doing a dangerous job, where it's important that they can get information to as safely execute arrest and search warrants, why do we only feel the need to protect them from non-permanent residents?

Given changes in technology, do the laws that require warrants in respect of direct phone-tapping make sense, given that telephone conversations can be intercepted without direct phone-tapping? It could be that we require (Prime) Ministerial sign-off for such surveillance not because of heightened privacy interest, but because entry into a building to place a bug is the most likely to go wrong, and we want our politicians to have a say in approving surveillance that is more likely to turn sour. Would that be a good basis for such a law?

Is the oversight provided by the Intelligence and Security Committee sufficient? The legislation setting it up was adopted in 1996, before the multi-party environment of MMP, so is five members enough?

The Committee can't look at any matter relating directly to the activities of an intelligence and security agency. It is also prohibited frominquiring into any matter within the jurisdiction of the Inspector-General of Intelligence and Security. Are its powers too constrained?

Is it even right that the Minister in charge of the GCSB is a member of the committee, and is also it's chairperson? Or should its role be holding that minister to account, as select committees try to in their areas of speciality?

We currently require approval of the Commissioner of Security Warrants for SIS surveillance of citizens and permanent residents, and allow the minister alone to approve other warrants without judicial (the Commissioner is a retired Judge) oversight. Should this protection be applied to everyone? Should it extend to GCSB surveillance conducted of people in New Zealand?

Is the role of the Inspector-General too close to the agencies it oversees? Are the powers and resourcing of the Office sufficient to cover the increasing complexity (so I've been told) of our security agencies?

These aren't questions any current inquiry will be looking at, but changes to the law (hopefully) have the greatest chance of improving the democratic oversight, and ensuring abuses either don't happen, or are properly investigated. The laws governing our security agencies are varied, and the roles different parts play with each other don't appear to be part of a coherent whole.

The ad hoc arrangements we had for search and surveillance were recently re-assessed, and changes bringing some coherence have recently entered into force. Agree with all the detail, or not, they now at least make sense. As boring as the conclusion may sound, a review of the laws governing our security apparatus may be just the job for the Law Commission!

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